Chapter 7 The Restaurant Sector: Alcohol. Copyright © 2007 by Nelson, a division of Thomson Canada Limited 2 Summary of Objectives To identify types

Chapter 7 The Restaurant Sector: Alcohol

Copyright © 2007 by Nelson, a divisiCopyright © 2007 by Nelson, a division of Thomson Canada Limitedon of Thomson Canada Limited

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Summary of Objectives

To identify types of liability To identify types of liability associated with the sale and associated with the sale and service of alcohol, including tort service of alcohol, including tort liability, regulatory liability, liability, regulatory liability, criminal liability and common law criminal liability and common law liabilityliability

To examine strategies for the safe To examine strategies for the safe management of disruptive management of disruptive behaviour by guestsbehaviour by guests


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Alcohol Sector

As with the food sector, operators As with the food sector, operators who serve alcohol owe a duty to who serve alcohol owe a duty to both the public and to their both the public and to their employees.employees.

The sale of alcohol requires a The sale of alcohol requires a government licence, a breach of government licence, a breach of which results in criminal and civil which results in criminal and civil liability.liability.


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Alcohol Sector 2 Examples of government and Examples of government and

non-profit programs related to non-profit programs related to alcohol consumption arealcohol consumption are

• R.I.D.E.R.I.D.E.

• Last DrinkLast Drink

• M.A.D.D.M.A.D.D.


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Alcohol Sector 3 The duty of care owed has been The duty of care owed has been

broadenedbroadened

• A duty of care is owed by consumers of A duty of care is owed by consumers of alcohol.alcohol.

• A duty is owed by those who benefit from A duty is owed by those who benefit from its provision to take positive steps to its provision to take positive steps to guard against potential harm.guard against potential harm.

o An exception to those providers who owe An exception to those providers who owe this duty: provincially or territorially owned this duty: provincially or territorially owned liquor outletsliquor outlets


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Liability for Alcohol Misuse Criminal Code – consumers must not Criminal Code – consumers must not

drink and drivedrink and drive

Liquor Licence Act – bar operators Liquor Licence Act – bar operators must not serve a consumer who:must not serve a consumer who:

• appears to be under age, orappears to be under age, or

• appears to be intoxicatedappears to be intoxicated

The injured person or the estate of a The injured person or the estate of a deceased person can sue the alcohol deceased person can sue the alcohol providerprovider


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Liability for Alcohol Misuse 2

At common law, a plaintiff can At common law, a plaintiff can sue forsue for

• breach of contractbreach of contract

• breach of duty of care in breach of duty of care in negligencenegligence

• breach of occupier’s duty of carebreach of occupier’s duty of care


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Liability for Alcohol Misuse 3 Generally, the bar, lounge or restaurant Generally, the bar, lounge or restaurant

operator is vicariously liable for the actions operator is vicariously liable for the actions of employees with respect to service of of employees with respect to service of alcoholalcohol

But the employer may avoid liability ifBut the employer may avoid liability if

• the employee was clearly instructed not to serve the employee was clearly instructed not to serve a patrona patron

• the server ignored the instructions out of the server ignored the instructions out of friendship or infatuationfriendship or infatuation

• the server did not charge the patron for the the server did not charge the patron for the drinksdrinks


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Criminal Liability

Criminal liability applies to drivers Criminal liability applies to drivers of motor vehicles and boats.of motor vehicles and boats.

A driver’s blood alcohol content A driver’s blood alcohol content must not exceed .08 percent.must not exceed .08 percent.


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Regulatory Liability

Operators must not serve patrons Operators must not serve patrons who appear to be intoxicated.who appear to be intoxicated.

Those who are intoxicated should Those who are intoxicated should not be permitted to remain on the not be permitted to remain on the premises.premises.


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Respondeat Superior

Vendors and servers must be Vendors and servers must be trained to recognize subtle signs trained to recognize subtle signs of intoxication:of intoxication:

• Behavioural changesBehavioural changes

• Changes in speechChanges in speech

• Loss of co-ordinationLoss of co-ordination


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Respondeat Superior 2 Although a duty of positive action Although a duty of positive action

to try to prevent an intoxicated to try to prevent an intoxicated person from driving arises if the person from driving arises if the patron is alone, a licensee is patron is alone, a licensee is entitled to assume that a patron entitled to assume that a patron in the company of persons in the company of persons drinking no alcohol will be safely drinking no alcohol will be safely taken home by those companions.taken home by those companions.


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Underage Persons

The Liquor Licence Act specifies The Liquor Licence Act specifies thatthat

• it is an offence to sell alcohol to it is an offence to sell alcohol to anyone who is underage.anyone who is underage.

• the server must ask for identificationthe server must ask for identification

• if an adult appears to be purchasing if an adult appears to be purchasing for a minor, the vendor has a duty to for a minor, the vendor has a duty to refuse to sell to the adultrefuse to sell to the adult


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Common Law Liability

Legislation and the tort law Legislation and the tort law bypass have circumvented the bypass have circumvented the privity of contract problem for privity of contract problem for injured third parties.injured third parties.


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Common Law Liability 2

Damages for negligence includeDamages for negligence include

• special damagesspecial damages

• general damages for pain and general damages for pain and sufferingsuffering

• punitive damages (sometimes)punitive damages (sometimes)


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Common Law Liability 3

Depending on the size and layout Depending on the size and layout of a bar and the common practice of a bar and the common practice of people buying rounds of drinks of people buying rounds of drinks for others, a licensee’s duty of for others, a licensee’s duty of care may not be met if staff care may not be met if staff consists of a single bartender and consists of a single bartender and no servers to assist the bartender no servers to assist the bartender in observing patrons.in observing patrons.


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Occupiers Liability

Legislation provides that Legislation provides that occupiers have a duty to protect occupiers have a duty to protect the person and property of guests the person and property of guests entering their premises.entering their premises.

The duty includes the care of the The duty includes the care of the premises themselves as well as premises themselves as well as the activities conducted on them.the activities conducted on them.


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Occupiers Liability 2 The conduct of a patron on the The conduct of a patron on the

premises of the licensee may premises of the licensee may result in a complete or partial loss result in a complete or partial loss of any award of damages. of any award of damages.


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Belligerent Customers

The licensee owes customers a The licensee owes customers a duty to protect them from duty to protect them from foreseeable risks, in light of all foreseeable risks, in light of all applicable circumstances.applicable circumstances.

Establishments employing Establishments employing bouncers require more liability bouncers require more liability insurance than facilities without insurance than facilities without bouncers.bouncers.


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Permitted Activities

Liability can arise from permitting Liability can arise from permitting an activity to continue after staff an activity to continue after staff became aware of it.became aware of it.


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Duty Owed to Employees If company parties involve the If company parties involve the

service of alcohol, the employer service of alcohol, the employer shouldshould

• provide overnight accommodationprovide overnight accommodation

• provide transportation to the provide transportation to the residence of the employeesresidence of the employees

• design and institute a designated design and institute a designated driver policydriver policy

Documents

Chapter 7 The Restaurant Sector: Alcohol. Copyright © 2007 by Nelson, a division of Thomson Canada Limited 2 Summary of Objectives To identify types